1. This judgment will dispose of R. S. A. Nos. 1543, 1637 to 1642 and 1660 of 1982 which arise out of eight suits which were consolidated by the trial Court and were disposed of by one judgment.
2. Ganeshi Lal was the common ancestor of the plaintiffs. During his lifetime, vide mutation Exhibit P. 1 dt. 12th Dec. 1901, he transferred his property in favour of his only son Kanshi Nath, who died in the year 1902. On the death of Kanshi Nath, his property was mutated in favour of his two sons, namely Hari Kishan Dass and Ram Chand vide mutation Exhibit P-2 Dt. 4th April, 1902. Ram Chand died unmarried. On his death, his estate was mutated in favour of his brother Hari Kishan Dass vide matation Exhibit P-3 dt. 26th Dec. 1902. Hari Kishan Dass died on 1st Feb. 1970 On his death, his estate was mutated in favour of his three sons (plaintiffs) and one daughter Shashi Prabha vide mutation Exhibit P-4 dt. 28th Sept. 1970, in equal shares i.e. 1/4th each. Hari Kishan Dass had property in more than one district and being a big landowner his case for determining the surplus land was tried by the Special Collector. The Special Collector in his order dt. 21st June, 1976 (Exhibit D-2) relied upon mutation Exhibit P-4, where under all the four heirs of Hari Kishan Dass got 1/4th share each and passed the orders accordingly. In the Jamabandi also for the year 1976-77 (Exhibits P-21 to P26) the shares of all the heirs of Hari Kishan Dass were shown to be 1/4th each. Shashi Prabha daughter of Hari Kishan Dass thus being the owner of 1/4th share of the estate of her father, sold some land out of the same by executing eight different sale deeds dt. 14th May, 1973. The vendee-defendants are the appellants in all these appeals. The plaintiffs who are the three sons of Hari Kishan Dass deceased filed the suits on 12th May, 1976, for declaration and possession to the effect that the sale deeds were valid to the extent of 1/16th share out of the land sold and qua the remaining land these were nullity and ineffectual against the rights of the plaintiffs. The plaintiffs also prayed for joint possession of the property on that basis. The allegations were made in the plaints that the suit land was an ancestral property in the hands of late Hari Krishan Dass and the plaintiffs were coparceners in this property by virtue of thier birth in the family and the property in the hands of Hari Kishan Dass was a coparcenary property. So Hari Kishan Dass was owner of only 1/4th share in the property and the plaintiffs were also owners of 1/4th share each in the property, as the parties are governed by the Mitakashra school of thought. In para 4 it was further pleaded that late Hari Kishan Dass died intestate on 1st Feb, 1970, leaving the plaintiffs and defendant No. 4 Shashi Prabha (whose name was later on deleted by the plaintiffs) as his class-I heirs under the Hindus Succession Act. So the share of the plaintiffs in the coparcenary property came to 5/16th share each a 1/16th share in respect of Smt. Shashi Prabha defendant No. 4. On these allegations, it was alleged that the sale deeds executed by Shashi Prabha in favour of the vendee-defendants in excess of her rights in the property were invalid to the extent of 15/16th share in the whole property and were valid only to the extent of 1/16th share, to which Smt. Shashi Prabha was entitled to succeed on the death of their father Hari Kishan Dass. As observed earlier, the name of Shashi Prabha from the array of the defendants was deleted vide Court order dt. 1st Oct. 1976 on the statement of the learned counsel for the plaintiffs, before framing of the issues. Shashi P Shashi Prabha, though had not filed any written statement. Thus, the suit was contested by the vendee defendants on the ground that Shashi Prabha vendor was shown in the revenue record as owner of 1/4th share correctly and she rightly sold her share in the estate, of her father Hari Kishan Dass and the sale deeds executed by her were legal and valid. The objection was also taken that the suit was bad on account of non-joinder of necessary parties as the name of Shashi Prabha, who was a necessary party, was deleted by the plaintiffs themselves. The plea that the suit land was not ancestral or coparcenary property was also taken. It was also pleaded that the plaintiffs by their own act and conduct were estopped from filing the present suits. The trial Court found that the suit land in the hands of the plaintiffs and Shashi Prabha was ancestral of Hari Kishan Dass qua the plaintiffs. It was further found that Shashi Prabha was entitled to inherit 1/4th share and the mutation sanctioned in her favour in this behalf was legal and valid. It was further found that the suit was bad for non-joinder of necessary parties as the name of Shashi Prabha was deleted on the statement of the counsel for the plaintiffs on 1st Oct. 1976. Surprisingly enough, the trial Court vide its order dt. 2nd Jan 1980, brought the trial Court vide its order dt. 2nd Jan 1980 brought the legal representatives of Shashi Prabha on record, whereas it is admitted by the plaintiff in the statement as P.W. 1 and even now in this Court at the Bar that Shashi Prabha is still alive. The trial Court further found that the plaintiffs were estopped by their own act and conduct from filing the present suit. In view of these findings, the eight suits filed by the plaintiffs were dismissed. In appeal, the learned Additional District Judge reversed the finding of the trial Court as to the non-joinder of necessary parties. He came to the conclusion that Shashi Prabha was only a vendor and thus she could not be said to be a necessary party and the non-impleading of the vendor was of no consequence. The finding of the trial Court as to the suit property being ancestral property was not allowed to be challenged on behalf of the vendee-defendants on the ground that they had not filed any cross-objections or cross-appeals to that effect. For that proposition, reliance was placed on Choudhary Sahu (dead) by LRs. v. State of Bihar AIR 1982 SC 98. In view of these findings the plaintiffs' suit were decreed. Dissatisfied with the same, all the vendee-defendants have filed these appeals in this Court.
3. The learned counsel for the appellants contended that the lower appellate Court was wrong in disallowing the defendants to challenge the findings of the trial Court on the issues of the property being ancestral in the hands of Hari Kishan Dass deceased. According to the learned counsel, the judgment of the Supreme Court in Choudhary Sahu's case (supra), relied upon by the lower appellate Court was not at all applicable to the present case. According to the learned counsel, since the suits of the plaintiffs were dismissed, there was no question of filing any cross-objections because no relief as such was sought by them. Moreover, O. 41, R. 22 of the Civil P. C. provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour.
4. After hearing the learned counsel for the parties on the point, I am of the considered view that the defendants were entitled to challenge the findings of the trial Court on that issue even if they had not filed cross-objections as such. As a matter of fact, they were not at all required to file any such cross-objections. The Supreme Court authority relied upon has absolutely no applicability because in that case a part of the decree had become final as the defendants therein had not filed any appeal before the Commissioner. In the second appeal there, the defendants wanted to challenge that part of the decree as well, on which it was held that in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation, they could not be allowed to challenge the same in the second appeal. In the present case, the plaintiffs' suits were dismissed in toto and, therefore, the defendants were entitled to support the decree by showing that the finding against them in the Court below in respect of any issue ought to have been in their favour. Accordingly, the learned counsel for the appellants were allowed to challenge the said finding of the trial Court on this issue by referring to the evidence on record.
5. From the evidence, it was pointed out that since Ganeshi Lal had transferred his property during his lifetime in favour of his only son Kanshi Nath vide mutation Exhibit P-1; the property in his hand could not be said to be ancestral because he did not get it by way of succession. It was further pointed out that on the death of Kanshi Nath his two sons Hari Kishan Dass and Ram Chand succeeded to his estate vide mutation Exhibit P-2. Admittedly, Ram Chand died unmarried and, therefore, died issueless. Since Ram Chand died sonless and issueless, the property inherited by him from his father Kanshi Nath would be deemed to be his self-acquired property in view of para 223 of the Principles of Hindu Law by Mulla. Further on the death of Ram Chand his self-acquired property was inherited by Hari Kishan Dass, his brother, and, therefore, this property in the hands of Hari Kishan Dass would not be said to be ancestral property in view of Clause (3) of Para 223 of the Principles of Hindu Law by Mulla, wherein it has been provided that the property inherited by a person from any other relation except his father, is his separate property and his male issue do not take any interest in it by birth. Thus, the property inherited by a person from collaterals such as a brother, uncle etc. is his separate property. Since Ram Chand died in July 1902, no excerpt has been produced on record to show as to what was the property which was inherited by Hari Kishan Dass from his brother Ram Chand and what was the property inherited from his father Kanshi Nath. Thus, the whole property is mingled up i.e. self acquired property as well as his ancestral property, if any. On these facts, it could not be held that the property in the hands of Hari Kishan Dass was ancestral as claimed by the plaintiffs in their plaint. The trial Court decided this issue simply on the ground that since the property originally belonged to Ganeshi Lal and it had come to the plaintiffs from their father Hari Kishan Dass by inheritance, the same has ancestral in their hands. This approach of the trial Court was erroneous and on the facts proved on the record, it could not be said that the property in the hands of Hari Kishan Dass was ancestral as such. Once it is so found that Hari Kishan Dass was the absolute owner of his property, then in that situation it could not be successfully contended on behalf of the plaintiffs that the property was a coparcenary property in the hands of Hari Kishan Dass qua the plaintiffs. Though it was argued on behalf of the plaintiffs that even if the property in the hands of Hari Kishan Dass was not proved to be ancestral, even then he had thrown the same into the common hotch-potch and, therefore, it will be deemed to be joint Hindu family property as regards the plaintiffs. However, I do not find any merit in this contention, nor there is any cogent evidence to that effect to come to that conclusion. Rather the evidence on record is contrary to this. On the death of Hari Kishan Dass his estate was mutated in favour of his three sons and daughter Smt. Shashi Prabha equally in 1/4th share each vide mutation Exhibit P-4. Even in the Jamabandis for the year 1976-77, the entries were made accordingly. Even before the Special Collector, the plaintiffs relied upon the said mutation whereby they had inherited 1/4th share of the estate of their father. Thus, taking into consideration all the facts and circumstances of the case and the evidence on record the plaintiffs have failed to prove by any cogent evidence that the property was ancestral in the hands of Hari Kishan Dass, their father and the plaintiffs had a birth right in that estate being coparceners as alleged by them. As a matter of fact if it is found that the property was not ancestral, the plaintiffs' suit are liable to be dismissed on this short ground alone.
6. However, it was next contended on behalf of the vendees that Shashi Prabha, their vendor, was a necessary party to the suit because in the present suit the challenge is to the right of Shashi Prabha to sell 1/4th share because, according to the plaintiffs, she was only entitled to 1/16th share in the estate of their father Hari Kishan Dass. This declaration could only be sought if Shashi Prabha was a party to the suits. Admittedly, originally she was impleaded as defendant 4 but surprisingly enough and for the reasons best known to the plaintiffs her name was deleted by making a statement in the Court on 1st Oct. 1976. Under O. 1 R. 9 of the Civil P. C. it is provided that nothing in this rule shall apply to the non-joinder of a necessary party. It was held in Kanakarathanammal v. V. S. Loganatha Mudaliar, AIR 1965 SC 271, that it is true that under O. 1 R.9 of the Civil P. C. no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. No explanation whatsoever has been offered on behalf of the plaintiffs as to why her name was deleted from the array of the defendants. The present suits were in the nature of declaration of title and recovery of possession and Shashi Prabha being one of the co-owners in the suit property was necessary to be impleaded as defendant. It was held in Aswini Kumar Roy v. Kshitish Chandra Sen Gupta, AIR 1971 Cal 252, that in a suit of this nature all the co-owners are necessary parties. It will not be out of place to mention that the plaintiffs own huge property. The order of the Wealth-tax Officer Exhibit P-28 is on the record as well as the certificate by the I. T. O. Exhibit P-29. According to the plaintiffs, their sister will be entitled to 1/16th share in all the estate left behind by their father Hari Kishan Dass. If that is so, then such a declaration could be obtained only if Shashi Prabha was a party to this suit. The finding of the lower Appellate Court in this behalf is wholly wrong and illegal and misconceived. It is not a suit challenging the alienation as such where the vendors are ordinarily not necessary parties. It is a suit where the plaintiffs want a declaration that Shashi Prabha was entitled to succeed only to 1/16th share to the estate of their father. The sales were being challenged on that ground alone, and not on the ground that it was without any legal necessity etc. Thus, the observations of the lower appellate Court that it is well settled that in such cases the vendors are not necessary parties were not warranted. The finding of the trial Court in this behalf under issue No. 6 was perfectly correct when it was observed that it was Shashi Prabha who alienated the land representing that she was owner of 1/4th share and in case her right of interest to that extent was challenged in that holding, she was a necessary party.
7. It was next contended on behalf of the appellants that the plaintiffs by their own act and conduct were estopped from filling the present suits. According to the learned counsel for the appellants the mutation Exhibit P-4 was sanctioned in favour of the four heirs of the deceased--Hari Kishan Dass at the report of one of the plaintiffs Ishwari Parshad. Apart from that, before the Special Collector also the plaintiffs relied upon the said mutation claiming 1/4th share in the estate of their deceased father and thus getting benefit on the basis of that mutation. Not only that, even in the revenue records the entries were still continued to be the same and were never challenged by the plaintiffs. On these facts, it was argued that the plaintiffs having taken benefit of the mutation Exhibit P-4 before the Special Collector could not be allowed to contend by filing these suits that Shashi Prabha their sister, had only 1/16th share in the property left behind by their father Hari Kishan Dass. In support of this contention reference was made to Ujagar Singh v. Sham Singh, AIR 1979 Punj & Har 12, wherein it was held that after a lapse of many years, the plaintiffs were estopped from challenging the 1/4th share that went to the defendant alleging that they were entitled to that share to the exclusion of the defendant. In any case, from the conduct of the plaintiffs, it is quite evident that the plaintiffs made representations before the Special Collector, Surplus Area, that they and Shashi Prabha are owners of 1/4th share in the estate left by Hari Kishan Dass and on that basis, the trial Court rightly came to the conclusion under issue No. 11 in favour of the defendants and against the plaintiffs. The learned lower appellate Court has set aside that finding of a trial Court simply by observing that the plaintiffs never made any representations before the Special Collector that they and Shashi Prabha were owners of the land to the extent of 1/4th share each. According to the learned lower appellate Court, even otherwise the plaintiffs could not be estopped from filing the present suits and claiming themselves to be the owners of 15/16th share in the land, if they were entitled to claim so under the law. This approach is against wholly wrong and erroneous. From the perusal of the order Exhibit D-2. it is quite evident that the said mutation order was relied upon by the plaintiffs in order to claim that they have succeeded to 1/4th share to the estate of their father.
8. It was also contended that the suit as such was not maintainable because the entire property belonging to the plaintiffs and their sister Shashi Prabha, was not included in the suit. This issue does not arise in view of the findings given earlier.
9. Consequently, all the appeals are allowed with costs, the judgment and decree of the lower appellate Court are set aide and those of the trial Court, dismissing the plaintiff's suits are restored.
10. Appeal allowed.